head of a rivet. Zybach, another member, was holding the hard face of a tool known as a "softhead" against the point of the rivet, and plaintiff was striking the softhead with a riveting hammer. As a result of plaintiff's blow, a small piece of steel flew from near the center of the top of the softhead, struck plaintiff's right eye, and destroyed the sight thereof.

The defendant manufactured the softheads used by the riveters, employing a blacksmith for that purpose, among others. The softhead was manufactured hard in one end and soft in the other, for the one using the riveting hammer to strike against. The softhead in question was manufactured from a riveting hammer. In making a riveting hammer, both ends are tempered and the eye is left soft.

"Q. So what would have to be done with the hammer before it would be fit for a softhead?

"A. Have it sent to the blacksmith shop and have it annealed. By annealing I mean softening. Taking all of the temper out of a piece of metal. You would heat it in the fire cherry red. Suppose you didn't have to cut off either end, but all you had to do was to take the temper out, you would just heat it up to a cherry red and throw it down. You would not have to heat the other end at all to take the temper out of that end. I would not reheat the whole tool.

"Q. If the blacksmith, when he heated that, did not heat it hot enough, and then he threw it down, there would be some temper left in it?

"A. If he didn't heat it hot enough, certainly the temper would be there just the same.

"Q. And if he left any temper in it, of course, in that way, it would not be a fit tool to be used as a softhead? "A. No, sir."

The negligence alleged and sought to be proved by plaintiff was that defendant's blacksmith, who manufactured the softhead out of the riveting hammer, either put or left temper in the end which should have been soft. The case was submitted to the jury, who rendered a verdict in favor of plaintiff for $3,682.23. Defendant brings

the record to this court for review upon writ of error. The following is a synopsis of the errors relied upon:

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(1) The court should have directed a verdict for defendant: (a) Because there was no competent evidence to show that the softhead, as manufactured and furnished, was not reasonably safe. (b) Because there was no competent evidence to show that the hardness referred to by the expert witness Zimmerschied was the proximate cause of the injury. (c) Because there was no competent evidence to connect the condition of the tool with any actionable negligence on the part of the defendant. (d) Because the risk was assumed. (e) Because plaintiff was guilty of contributory negligence.

"(2) The court should have granted defendant's motion for a new trial on the ground that the verdict was excessive and against the weight of the evidence.

"(3) The court should have charged, as requested, that there was no competent evidence of any impairment of plaintiff's earning capacity.

"(4) Prejudicial statements of plaintiff's counsel.

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'(5) The error of the trial judge in defining the limits of defendant's duty.

"(6) Admitting evidence of the comparative hardness of Exhibit A and other tools.

"(7) The admission of opinion evidence on questions that should have been left to the jury.

"(8) The admission of the opinion evidence of the witness Zimmerschied on matters in respect to which he was not qualified.

"(9) The admission of opinion evidence of plaintiff and Zybach.

"(10) Miscellaneous errors in connection with the charge and requests to charge.

'(11) Miscellaneous errors in the admission of evidence."

1. The important question presented by the record is whether the blacksmith who manufactured the softhead out of the riveting hammer put or left temper in the soft end thereof. The testimony of defendant's witnesses tended to show that:

"There ought to be no temper at all in the head of the softhead. If a man should make a softhead and put

some temper in the head of it, that would not be a properly made tool.

"Q. And if the temper was put in the head of it, it would not be a safe tool either, would it?

"A. No, sir; a man would be foolish to do it.

"Q. Why wouldn't that tool be safe to use if there was temper in it?

"A. Simply because it is dangerous. There would be danger of losing an eye. Piece might fly from it; get a piece in your hand, arm, or body.

"Q. When making a tool such as that, which is the harder thing to do, to get the right temper here in the face of the tool, or to leave the other end soft?

"A. Temper the face. That is where the fine part of the blacksmith's work comes in. We always leave the temper out of the other end. That is natural work.

"Q. You can always do that in making a tool like this; you can always work it so as to leave the temper out of the soft end of it?

"A. Yes, sir.

"Q. There is no necessity of putting any temper, and no reason why you should at all?

"A. No, sir.'

Defendant's testimony further tended to show that the softhead in question had no temper in the soft end, and appeared to be and was a safe tool for a man to work with.

"Q. So you would not blame a riveter for taking the tool if the toolman handed him this tool and he went to work with it?

"A. No, sir.

"Q. He would be justified in using it?

"A. Yes, sir."

Defendant's witnesses, in the main, were blacksmiths of long experience in the making of such tools, but without experience in the chemical analysis or microscopical examination of steel.

The sole witness to sustain the plaintiff's allegation of negligence was Mr. K. W. Zimmerschied, an instructor in metallurgy and qualitative analysis in the State University. Prof. Campbell has charge of the department, but owing to blindness is not able to do the actual work,

and, as an instructor in his department, Mr. Zimmerschied does "practically all the metallurgical analysis and all of the microscopic work along metallurgical lines." We regard the testimony of Mr. Zimmerschied as fully establishing his competency and qualifications to testify as an expert concerning the condition of the softhead in question. Having testified as to the chemical analysis and microscopical examination made by him, he testified that the temper or hardness had not been sufficiently removed from the soft end of the tool in question; that the tool was not properly made in the first instance, but was subjected to improper heat treatment.

"Q. With reference to Exhibit A, I wish you would state whether or not the degree of hardness that you found in the head of that tool could have been produced by longcontinued use, such as hammering or striking upon the head?

"A. The condition of hardness?

"Q. Yes, the excess of hardness.

"A. The condition found could not have been produced by long-continued striking upon the head.

"Q. And when must that condition have been produced? "A. It must have been produced during the heat treatment of the tool."

With reference to the chemical analysis, the witness testified that the carbon present was the ordinary percentage, but the phosphorus was "slightly above the amount that should be present;" but the excess was not serious, and "a competent blacksmith could make a reasonably safe tool from that material."

"Q. You assume that certain conditions of cooling were present, and you assumed that from the microscopic examination? That test is not absolutely infallible, is it? I mean by that, that you cannot tell beyond a doubt that the tool maker in making that tool treated it as you suppose he treated it, from your examination?

"A. I can tell beyond a doubt that the conditions of cooling were certain; as to whether he plunged it into water, the way of it, exactly in what way, I am not able to tell, or that he used water instead of brine, but the rate of cooling can be determined beyond a doubt."

If chipping was due to the chemical composition of the metal or the heat treatment, he testified that it would be just as likely to occur the first day as afterwards.

The essence of Mr. Zimmerschied's testimony was that, by tests which admitted of no doubt as to the result, he had determined that there was temper left in the softhead by the blacksmith who manufactured it. This, under the testimony of defendant's witnesses, was competent proof of, and, if believed, a demonstration of, defendant's negligence. The testimony of defendant's witnesses tended to show that the tool was properly made in the first instance and safe when used; that the steel in the softhead, from continual hammering, would crystallize and harden and scales would form, which, by being struck with the edge of the hammer, would fly off. This was directly opposed to the testimony of Mr. Zimmerschied, and it was for the jury to say which line of testimony was correct.

In view of the testimony of defendant's expert witness Hennessy, that the very thing might happen which did happen, if temper were left in the softhead, and the testimony of Zimmerschied that long-continued hammering would make no difference, we do not understand how it can be contended that the evidence did not tend to show that the temper was the proximate cause of the injury. Neither, in view of the same witnesses' testimony to the contrary, do we understand how defendant's counsel can contend that the evidence shows contributory negligence, as a matter of law. It was conceded that the steel was proper for making the softhead, and it was for the jury to say, under the testimony of Zimmerschied, whether the excess of phosphorus, or the hardening of the head by hammering, had anything to do with the accident. If they gave credit to his testimony, and found that leaving the temper in the softhead was the cause of plaintiff's injuries, it would naturally follow that the negligence was defendant's, since it was responsible for the negligence of its blacksmiths, to whom it had committed its duty of furnishing safe tools to its employés.